Balchandra vs The Controller, State Accountant Department and Others

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondent.

The petitioner was appointed in the year 1980 as a coolie on daily wage basis in the office of the respondent. In the year 1993, the Government of Karnataka is said to have issued a Government Order regularizing the services of daily wage employees. The respondent - Hubli Dharwad Municipal Corporation (HDMC) is said to have adopted the said Government Order under an Official memorandum dated 8.4.1994 and has proceeded to regularize the services of the daily wage employees who had worked for more than 10 years prior to 1.6.1986. It thus regularized the services of 662 daily wage employees including the petitioner herein.

The petitioner was said to have been promoted to the post of sanitary inspector on 18.12.1999 which was a sanctioned permanent post. The petitioner''s pay was fixed in the scale of Rs. 2600-4350/-. On 10.5.2002, the petitioner was again promoted as Second Division Clerk and was posted in the sanctioned post of one R.B. Anvekar of the Accounts Department who was transferred. The pay scale of the petitioner was fixed as Rs. 3300-6300. Since the date of promotion, till the date he attained superannuation on 31.5.2008, the petitioner is said to have discharged his duties diligently and retired as on the said date. The last drawn pay of the petitioner was at Rs. 9981/-.

Though the petitioner had retired on 31.5.2008, his retirement benefits were not provided to him immediately. There was delay in this regard. The petitioner was constrained to make representations in order to obtain the same. After lapse of five months and after repeated follow up, the respondent - HDMC had passed an order of payment of pension on 21.10.2008 and intimating the entitlement of the retirement benefits of the petitioner. He was shocked to note that a sum of Rs. 56,563/- was ordered to be recovered without assigning any reason, to which there was no inkling as to how this amount has been recovered. The respondent thereafter had clarified that there was an administrative order to that effect which enabled them to recover the said amount. The petitioner therefore had made a representation dated 20.5.2009 calling upon the first respondent to refix the retirement benefits of the petitioner taking into consideration the promotion given to him and on the basis of the last drawn pay as it existed on the date of retirement and also to reimburse the amounts deducted illegally. The respondent, by reply, dated 1.12.2010, had opined that there was an administrative decision and that they were helpless in considering the demand for reimbursement of the amount and refused to return any amount. The petitioner thereafter had preferred this petition.

During the pendency of the case, the respondents had entered appearance through counsel and had filed statement of objections and a stand was taken that the petitioner was promoted to the post of Sanitary Inspector on 18.12.1999 in the supernumerary post and not against a sanctioned post and the pay of the petitioner was fixed at Rs. 2600-4350. It was not disputed that the petitioner was promoted as Second Division Clerk and the pay scale of the petitioner was fixed at Rs. 3300-6300 and the last basic pay was fixed at Rs. 7,275/-. However, after refixation, the basic pay was fixed at Rs. 6,375/-. The petitioner having retired on 31.5.2008 it was not admitted that the retirement benefits were not settled earlier. Respondent No. 3 has raised an objection that no promotion could have been given to those working in supernumerary posts and accordingly while calculating the pensionary benefits of the petitioner, promotions were reverted and the pay was refixed and requisite sanction for administrative order for payment of retirement benefits was issued. A detailed calculation sheet of the retirement benefits is annexed to the statement of objections. It is this primary contention on which the respondent seeks to justify the recovery of the alleged excess pay paid to the petitioner.

The learned Counsel for the petitioner would submit that it is the settled legal position that if payments are made by an employer to an employee not on account of any fraud or misrepresentation made by the employee, the question of the employer at a remote point of time seeking to recover such payments made as excess payment is impermissible and that there are a whole line of cases in this regard. Further insofar as the contention that the petitioner was promoted against a supernumerary post and therefore was not entitled to such promotion and the same having been set at naught and the last drawn pay of a coolie being taken into account for calculating the pensionary benefits is wholly illegal and seeks that the pensionary benefits be directed to be reworked on the basis of the last drawn pay of a Second Division Assistant.

While the learned counsel for the respondent - HDMC would submit that insofar as the employer''s right to recover amounts paid is concerned, though it was the law as laid down by the Supreme Court earlier that if such payments were made without any fraud or misrepresentation on the part of the beneficiary, the question of recovering the same did not arise, is not a legally good law as a three-Judge bench in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , on a review of the case law, has expressed as follows:--

"6. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."

And therefore, the learned Counsel would submit that since there was no question of promoting the petitioner as against a supernumerary post and hence recovery having been made on that basis cannot be faulted. The question of affording pension with reference to the last drawn pay of the petitioner as Second Division Clerk also would not arise and seeks dismissal of the petition.

However, it is noted in Chandi Prasad, supra, that view few instances pointed out in Syed Abdul Qadir and Others Vs. State of Bihar and Others, , are exceptions to the rule that an employer can recover excess payments made ether on account of negligence, carelessness, collusion, favouritism and the exception that was permissible according to the apex court in Syed Abdul Qadir, supra, was that the beneficiaries were retired employees or were on the verge of it and there would be hardship caused to such employees if amounts paid to them are sought to be recovered. It would squarely apply to the present case on hand as the petitioner was inducted in the first instance as a coolie and rose to the position of a second division clerk, which again is sought to be denied and recoveries are sought to be made from the petitioner, when the petitioner was holding a humble position and has retired with nominal benefits. This would indeed cause hardship and anxiety. Therefore, it is an instance where it can be said that the petitioner''s case falls within the scope of Syed Abdul Qadir-''s case.

Secondly, the recovery made by the respondents of retirement benefits cannot be sustained. The respondents are therefore directed to release the amounts so withheld from the retirement benefits in a sum of Rs. 56,563/- and since the respondents have had the benefit of this amount which was money earned by the petitioner, it is but appropriate for the respondents to pay interest on this amount at a nominal rate of 10% per annum from the date it was withheld till the date of payment. In any event, the amount shall be paid to the petitioner within a period of four weeks failing which interest would be attracted at 18% per annum from the date of default till the date of payment.

Insofar as the petitioner''s contention that he was not holding a supernumerary post when he was promoted as a Sanitary Inspector is an area of controversy. In that, the abolition of the supernumerary post, which the petitioner was holding, had preceded his promotion as a sanitary inspector, in which event, in the eye of law, he was holding a regular sanctioned post when he was promoted and if that was so, the objection that the petitioner was holding supernumerary post when he was promoted cannot be sustained. This, in any case, is a matter which is to be reviewed by the concerned respondents and appropriate steps taken to ensure that the petitioner gets his due by way of pensionary benefits recalculated on the basis of the last drawn salary of a Second Division Assistant as on the date of his attaining the age of superannuation. This exercise of reconsidering the petitioner''s case for just relief shall also be carried out expeditiously, in any event, within a period of eight weeks from the date of receipt of a certified copy of this order. In the meanwhile, the petitioner shall continue to receive pension that is being paid and if in the event he should succeed, he should be entitled to arrears of pension on that basis from the date of his retirement.